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A Move towards a New Paradigm Shift?

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Draft Twentieth Amendment

by Dr. Dayanath Jayasuriya P. C.

Most social and political scientists are in agreement that in respect of several sectors Sri Lanka made significant progress under the Donoughmore system of government. The first State Council of Ceylon opened on July 7, 1931; an event held 89 years ago with much pomp and pageantry. The committee system had specific mandates and members nursed their electorates to win confidence to be reelected largely without political affiliations. The first independent constitution, drafted with the assistance of Sir Ivor Jennings, who became a close associate of D. S. Senanayake, followed basically the Westminster parliamentary model of democratic government with dual chambers and other changes. The Queen retained limited powers and was represented through a Governor.

Party politics continued to exert greater influence with language, religion and minority rights gaining more currency. In the early 1970s, nationalist sentiments called for a ‘home-spun’ constitution. The first casualty was the appeals to the Privy Council. This was essentially a precursor to adopting a new constitution through an informal assembly and bypassing the entrenched provisions in the independent constitution. In 1972, the country became a full-fledged democratic Republic, known as Sri Lanka, severing all links with the British monarch. With a change of government in 1977, the process of drafting a new constitution began. The new Constitution has since been amended 19 times giving rise to its description as a ‘periodical’ in bookshops and libraries in the U. K.

The period from 1948 to 2020 has witnessed many changes and developments. Besides the well known youth insurrections and a 30-year war against an attempt to set up a separate state, several Prime Ministers and Presidents, together with their respective ministers and party members, have initiated movements and projects to develop the country. Resettlement schemes of D. S. Senananyke; prominence to Sinhala as the main language by S. W. R. D. Bandaranaike; the green revolution of Dudley Senanayake; the nationalization of schools and the popularization of the non-alignment movement by Mrs. Sirimavo Bandaranaike; liberalization of the economy by J. R. Jayewardene; housing projects for the homeless by Premadasa; institutional capacity-building by Mrs. Chandrika Bandaranaike Kumaratunga; and construction of highways and building of harbours, airport and a new Port City by Mahinda Rajapaksa are only a few examples that readily come to mind.

However, it cannot be gainsaid that all these were an unqualified success story; some led to or took place during a train of unpleasant events which still haunt the country such as the rights of minorities, the huge external debt etc. From the early 1980s, the ethnic war diverted attention from more pressing social issues and was a drain on the economic resources, not to mention the huge loss of life or disabilities of youth in their prime. The April 21 Easter Sunday attacks by militant Muslim groups have added a new dimension to the problems to be resolved in a multi-ethnic and multi-religious society. Highly qualified professionals migrated seeking greener pastures and the country lost the benefit of their services.

The country’s economic plight was neatly summarized by W. A. Wijeywardena, a former Deputy Governor of the Central Bank:

“Sri Lanka’s economy today is in a deep mess. Even after seven decades of independent rule, the country has not been able to push itself up to the level of a rich country. Over the entire post-independence period, the country had had a meagre economic growth of about 4.5% on average. That was pretty below the growth rate of 9% needed for raising the country to the status of a rich country within a few decades. Hence, all governments in the post-independence period are responsible for this malaise. Beginning from 2013, over the last seven-year period, the situation further deteriorated. Symptoms were manifested by falling growth rates, stagnant exports, mounting external debt, rising recourse to commercial borrowings, falling in government revenue, stubborn budget deficits, stagnant capital formation, high inflation though at mid-single digit level over the world inflation and pressure for exchange rate to depreciate…” (Daily FT 8 September 2020).

The 19th amendment was a hastily prepared piece of legislation which was not subjected to close scrutiny by politicians, lawyers or political scientists. Soon thereafter there was no love lost between the President and the Prime Minister who came from different political parties. A Supreme Court ruling effectively prevented the removal and replacement of the Prime Minister and the premature dissolution of the Parliament. The judgment placed great emphasis on the nebulous concept of ‘sovereignty of the people’ and some 15 President’s Counsel who appeared in the case paid lip service to the more important and salient concept of ‘separation of powers’.

In August 2020, President Gotabaya Rajapaksa’s party gained a landslide two-thirds majority with a mandate to amend or replace the 19th amendment and/or to introduce a new constitution. The ruling party has opted to introduce a new 20th amendment repealing some provisions in the 19th amendment but retaining certain provisions and appointed a committee of experts to draft a new constitution. A few members of the Buddhist clergy are unhappy that a non-Buddhist is heading the Committee but these fears are unfounded as there are other members and the committee’s mandate in only to submit a draft which would then be subject to public, parliamentary and judicial review before becoming law.

The paramount need to amend the 19th amendment to the Constitution apparently arises from the fact that two Presidents have found it difficult without full powers to achieve their intended policy goals. On two occasions a President and a Prime Minister from different political alliances found that what was to be a holy matrimony soon ended as an unholy deadlock. The appointment by President Sirisena of a non-national as the Governor of the Central Bank at the insistence of Prime Minister Ranil Wickremesinghe led to an unprecedented financial disaster tarnishing the reputation and integrity of the Central Bank. In at least two so-called independent commissions established under the 19th amendment to the Constitution. we saw certain members airing private views in public when they were expected to act discreetly.

Untrammeled presidential powers seem to be the golden key that anyone in power hopes will help to open the door to unleash the development process. The draft provides, inter alia, for the President exclusive powers to make high-level appointments of his choice. Parliament can be dissolved within a minimum of one year- a departure from the bizarre provision in the 18th amendment which provided for a four and a half year period. It was bizarre for the reason that if all members of Parliament resigned and no replacements were made, the President would still be obliged to complete the four and a half year period before calling for fresh elections! No piece of legislation is perfect but the 19th amendment leaves more to be desired than any previous amendment to the Constitution.

Already many criticisms have been leveled against certain draft proposals. For instance, much has been said about the proposal to grant dual citizens to enter Parliament. Even though it is speculated that this is intended to accommodate a related party who is currently debarred from being accommodated, there is no logical reason to exclude dual citizens from holding political office if the country were to benefit from their expertise and knowledge. A second chamber, the Senate, was envisioned under the Soulbury Constitution to give a place of importance to distinguished individuals who were reluctant to contest but could otherwise contribute to the nation’s decision-making process. Ideally, the 20th amendment should provide for dual citizen to hold not only political office but also office in public service and academia. We may hopefully be able to see more academics who are now overseas return to upgrade the knowledge and skills of students.

In the 1950’s and 1960’s, Sri Lanka was an exemplary developmental model studied by other countries such as Singapore and Malaysia. Today, the situation is just the opposite. Using current global indicators measuring corruption-free administration; ease of doing business; control over drugs of abuse, tobacco and alcohol; attracting foreign investments etc., Sri Lanka has fallen far behind most nations of the world. Successive governments and opposition members of Parliament and public servants must take much of the blame for inaction, short-sighted policies and running dysfunctional institutions.

Lord Acton, expressed the following opinion in a letter to Bishop Mandell Creighton in 1887:

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”

The challenge for any new President now is to emerge as a great and good man, thus proving that Lord Acton was wrong as far as his statement is concerned. Dharma Asoka the Great was known to have been a benevolent dictator under whose rule much good had taken place in India during his time. He is said to have followed the ten precepts (Dasa Raja Dharma) outlined by Lord Buddha himself as the duty of a perfect ruler, namely

1. To be liberal and avoid selfishness

2. To maintain a high moral character

3. To be prepared to sacrifice one’s own pleasure for the well-being of the subjects

4. To be honest and maintain absolute integrity

5. To be kind and gentle

6. To lead a simple life for the subjects to emulate

7. To be free from hatred of any kind

8. To exercise non-violence

9. To practice patience

10. To respect public opinion to promote peace and harmony

In plural societies such as ours, it is important that the achievement of peace and harmony must gain the top most priority. It behoves all religious and national leaders to move away from their narrow comfort zones and adopt a holistic approach and do whatever is possible to make Sri Lanka as one modern united nation that proudly belongs to all of us after 72 years of independence.

(The writer was conferred a Ph.D. by the University of Colombo for his work on ’Mechanics of Constitutional Change: The Sri Lankan Style’. After a career as an international civil servant he returned to Sri Lanka and served as Chairman of the Securities and Exchange Commission and the Insurance Board and as a member of the Public Utilities Commission and the National Procurement Commission. In December 2005 in accordance with a general circular from the Office of the P.M. he relinquished all these positions.)



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A Policy Science Analysis

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President’s Gama Samaga Pilisandarak

By Dr D. Chandraratna

Trying to place President’s Gama Samaga Pilisandarak (PGSP) in a scientific perspective of public policy making is timely. One of the stated objectives of the Presidents election manifesto, ‘Vistas of Prosperity’ is to create a village-centered development of our predominantly agriculture-based rural economy. The President has pledged to achieve a four-fold objective: a productive citizen, a happy family, a virtuous, disciplined and just society and ultimately a prosperous country. A laudable project worthy of comment and analysis.

President Rajapaksa believes that to achieve this broad objective, he must clearly identify the problems faced by the rural population, which constitutes about 70% of the population in Sri Lanka. It is well known that people in rural areas have suffered for far too long as national development goals are stymied. Given the fact Sri Lanka has an executive presidential system of government it must be understood that decisions that the executive President makes supersede all other decision centres. It is no secret however, that political decisions are tied up with ideology, party politics, group interests, vote banks and the survival of regimes. But in this paper we will leave the ideology and rhetoric aside and examine only the facts, evidence, ends and means only.

Ideal methods of policy making; the end points of a continuum

At the outset it is necessary to contextualise the exercise within the science of policy making in public affairs. Policies are a web of executive decisions made to overcome problems that people in society face in their day-to-day lives. These can be arranged on a continuum from the complex to the simple. At the complex end lies the oldest model, based on the theory of decisions expounded by the management guru Herbert Simon; it is called the Root Method or Comprehensive Rational model, where policy decisions are made after a laborious weighing of all alternative courses in terms of optimum results, costs, and many other value positions. Obviously, this is absolutely necessary in national issues and problems which consume a vast amount of national resources and are costly in nature. Infrastructure projects such as transport systems, communication systems, river and waterways, energy supplies etc., fit in with the comprehensive method of policy making. Governments issue white papers and appoint commissions, task forces and professional consultant bodies before such are undertaken because of the vastness in costs and liabilities. The most important fact is that the country as a whole must realise the value and necessity of such vital state projects. In Sri Lanka, it is a matter of regret that some costly projects such as the Mattala airport and the Hambantota Port have come under criticism because the national implications have not been professionally argued. The author is of the view that both were valuable projects in their own right and if only the relevant Ministry at the time had followed though the correct professional procedure in public policy-making, the projects may have had a different outcome.

In other countries, projects of that magnitude go though extensive weighing of alternatives, open professional debates and university research centres arguing about costs, benefits and opportunity costs of the nation’s limited resources. Science has to be put before ideology because haphazard interventions in national policy or grids or systems can be deleterious.

The opposite method at the other end is called incremental policy making, for as the name suggests it is limited in scope and applicable to small time projects with little or limited national implications. These appear solutions to residual ills, minor dysfunctions of national policies, which need remedial outcomes. Hence, such measures are called disjointed, piecemeal and also having incremental outcomes, benefitting a few at the margins. The fact that they are disjointed invites numerous criticisms. But their positives will be explored first.

This is the method of policy making that the President has taken up as a speedy solution to the numerous problems faced by the rural peasantry in Sri Lanka and his entourage has selected the most backward of villages as the points to touch on.

In fairness to the President, it must be stated at the outset that we do not consider this as a ploy on the part of the President to escape the political overload that he has inherited from years gone past. Ever since the gradual dissipation of efforts by governments since Independence, to kick-start the village economy as the mainstay of the national development strategy, the dividends have been sub-optimal. The colonisation schemes, village expansion schemes, financial assistance to tenants were only partially successful. We do remember the 10-year plans, five-year plans, Operations rooms, Planning Ministries but the results have been poor. The President will succeed to the extent that his advisors keep him informed of the successes, and especially failures of the efforts in the past. The President’s officials must not be a bunch of ‘yes men’ leading the President up the garden path.

Transparency in respect of both means and ends is the path to success. People are not unaware of the fact that politicians are in the habit of recommending such incremental stop-gap policies as a way out to avoid political embarrassment, hoping for a temporary respite. Bottom-up policy making has its positives but its limits and usefulness must be properly grasped.

President’s Gama Samaga Pilisandarak –– the context

Before we evaluate what the President has so far addressed, we must note the following facts about our broad policy field. Sri Lanka has nine provinces, 25 districts, 318 divisions and 14,022 Grama Niladari areas or villages. The country, consisting of 14,022 villages, is demarcated into 196 electorates. For 196 electorates there are 225 Members of Parliament to advance the welfare of all 14022 villages. Given the electoral system these members of Parliament represent not electorates, but districts. They are elected on the proportional representation system of voting. Hence no one at the Centre is responsible, theoretically at least, for any of the problems in any particular village.

Having identified that the PGSP is located at the incremental end of public policymaking we need to put it in an analytical perspective.

 

It is fair to surmise thus far the President has in his encounters identified and sometimes attended to some of the following major issues identified by the President inter alia: shortage of lands and water for agriculture and houses, unavailability of deeds for lands, inadequate health and transportation facilities, shortages affecting school and other educational issues, inaccessibility to drinking water, elephant-human conflicts and difficulties in marketing.

We are also aware that around 30 precent of the total households in rural societies in Sri Lanka live below the poverty line. Moreover, nutrition surveys conducted in the recent reveal a high prevalence of malnutrition among those in rural areas, which may have been caused by chronic poverty.

There are particular issues in some villages, which we will leave out in this paper.

The Analysis: Plusses and Minuses

I will use a famous textbook in policy making by Hogg and Gunn (1984) to follow through with the Presidential initiative. Let us start with the positives of the PGSP.

This move in the President’s opinion is for the top policy maker to ascertain the real situation in the village, which any text will title as an issue search. The pertinent question to ask is why these concerns do not come up on any agenda paper. Basically, it may be that those affected have no voice because organised interest groups with power and influence drive the issues that get priority. In a poor country, this should come as no surprise. The electronic media of late have had a number of programmes as an agenda-setting exercise with limited success but their main objective was to embarrass the local politicians and bureaucrats. The president also has an interest in attending to their immediate concerns before they could intensify in the future creating more headaches for him. Seeing the problem first hand gives the first policy maker in the country a view of the issue plus the complexities and need for ameliorative action.

The other positive from the perspective of the villager is the immediacy of solution, as resources can be mustered straight away by the President, which otherwise takes long years noting the plethora of departments and other bodies that are involved.

Sri Lanka is one of the highly bureaucratised countries with a public service ‘surplus to requirements’ and running the gauntlet is beyond the capacity of villagers. For example, to regularise a land permit, I was told by a one-time Land Commissioner, one has to have approvals from 23 odd government and semi government organisations. Things are unbelievably complicated by the number of authorising bodies. It took me 12 years after occupation to obtain the deed to my apartment from a government department in Colombo, and that too after two costly court cases. Bureaucratic corruption and inefficiency! Let us not talk about it. No wonder that the people awaiting the arrival of the President were sadly disappointed last week by the cancellation of his visit at the last minute.

In this bottom-up policy initiative there are many pitfalls that we can list straightaway. The President can visit only a few villages and those that are neglected can be politically ‘not with him’. Secondly, the problems are the same in most villages and it will be pointless wasting the time of the President because he will reach the saturation point very soon. He will realise that there are better and efficient mechanisms, given the resources, which can attend to these problems. What the information tells the President is that the issues, being common to many of the fourteen thousand villages are crying out for a national plan of action. Hence we wonder whether it is it the enormity of the issues that strained the limits of those who had power before, causing this neglect? Was it lack of insight, proper understanding, ministerial inexperience or the fear of realising the complexity of the interrelationships between issues or sheer lack of resources that caused this oversight?

The President cannot visit all villages and the solutions he instantaneously gives can be counterproductive. The furore over the environment and forests is a classic case where the Presidents instant solutions have become the weapon in the hands of an environmentally conscious middle class youth on whose bandwagon the opponents of the government are taking a joy ride.

The President will face similar catch-22 situations, which adversely affect his popularity. Incremental policies at the margins by themselves do not achieve much.

Conclusion

Sri Lanka failed in the bottom-up policy development due to many reasons and I can only highlight briefly a few for lack of space. The inefficient and lethargic conduct of the public institutions, the way our peoples representatives are elected without responsibility for particular localities, over 8000 politicians, the haphazard manner in which ministries are created for politicians (Foreign Affairs coupled with Lotteries!), the total lack of coordination between departments, the corruption of public officials, the inability of law to punish those who flout the law, the misuse of power and influence, the non-use or decay of coordination mechanisms such as Divisional, District and Provincial coordinating committees, and the lack of nexus between Provincial Councils and local authorities and many more. The political solution proposed by way of Provincial Councils has become a dead weight. Generally, we are an over governed society and as such the use of modern scientific management for policy implementation is non-existent.

An article appeared in your paper the other day by our colleague Ranjith Soysa from Australia about the successes of China in eradicating poverty in a matter of decades by comprehensive social policy planning which Sri Lanka can learn from. A white paper on poverty alleviation, which outlines the success of policies implemented, the methods employed and her desire to share the unique social experiment with other developing countries was mentioned therein. ‘Sri Lanka should make use of this opportunity to study the programme and follow its guidelines if a national comprehensive policy is to be implemented.

China achieved the largest scale battle against extreme poverty, as 98.99 million people had been lifted out of absolute poverty––a miracle in human history. But China achieves success because it is a planned centrally and the ideology is driven with strict, rigidly enforced rules, but whether we, being overly democratic, can enforce such discipline in a country noted for a poor work ethic is any one’s guess.

References

Hogwood,B.W & L.A.Gunn (1984) Policy Analysis for the Real World, Oxford, Oxford University Press.

D.Chandraratna, Making Social Policy in Modern Sri Lanka (2003), Vijitha Yapa, Colombo.

 

 

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Colombo port city economic commission bill 2021

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“Poorly drafted statutes are a burden on the entire State. Judges struggle to interpret and apply them. Attorneys find it difficult to base any sure advice upon them and the citizens desire to conform to them is confused. At times, totally unforeseen results are seen… On many occasions, defects lead to litigation.”

J. Menard, Legislative Counsel.USA

The Draft Bill, titled Colombo Port City Economic Commission Act 2021, is an important piece of legislation. It can be described as a game-changer for Sri Lanka. It is the biggest foreign investment received by Sri Lanka and it can lead to a success story as in many other countries. At this stage, review of the Draft Bill is of paramount importance, as it constitutes a marketing tool along with the Master-Plan prepared by the Chinese Harbour Company Ltd.

Unfortunately, this Draft Bill was not subject to pre-parliamentary review by our professional organisations and the epistemic community. In modern times, there is a constitutional practice in Commonwealth countries to consult the stakeholders, professional bodies and the epistemic community in regard to important legislation. The Advisory Council, appointed to draft the Securities Exchange Commission Bill 2019, under Dr. Kanag Iswaran, of which I was the Drafting Consultant, decided to involve the stakeholders and those interested in the subject matter by providing them with an exposure draft. It was a very useful exercise to clarify any ambiguities, inconsistencies and grey areas which can create problems in the implementation process.

Before I deal with the review of the draft Bill, I would like to provide a global perspective on legislation relating to port cities and special economic zones.

 

GLOBAL PERSPECTIVE

Legislation relating to port cities and special economic zones differ from one jurisdiction to another. There is no uniformity in such legislation, as “one size does not fit all”.

In Latin America and the Caribbean, special economic zones or offshore financial centres have grown piece-meal over a period of time to meet the needs and demands of the international business community. At the early stage, these countries enacted International Business Companies Act with no-tax or low-tax regime. Later on, they developed offshore banking, offshore trusts, offshore captive insurance and many other products and services to satisfy the needs and demands of high net-worth individuals and corporate clients.

Bahamas Offshore Banks and Trusts Act and the BVI Offshore Companies Act stand out as success stories. Likewise, Panama has registered several offshore shipping companies and provided them with the Panamanian flag to sail around the world. Antigua and Barbuda introduced internet gambling and it was challenged by the USA, but they won the case at the WTO.

In Europe, similar developments took place in Switzerland, Ireland, Jersey, Isle of Man and Cyprus. These countries and territories have made many innovations to attract foreign investments by registering international business companies and later on by introducing various products and services. Switzerland is known for bank secrecy.

In the Middle East, new legislation was enacted to start on a clean slate. Both in Qatar and Dubai, they were confined to one piece of legislation and managed by Qatar Financial Services Authority and Dubai Financial Services Authority respectively according to regulatory policy and the law. It is very different from the way the English-speaking Common Law countries operate Special Economic Zones.

In Labuan (Malaysia), Dr. Mahatir Mohammed established the Labuan Offshore Financial Authority and introduced lengthy legislation on offshore banking, offshore trusts, offshore insurance, offshore partnerships, etc., so that they are guided by law and not by policy. It has proved to be a roaring success with the participation of a very few but very rich clientele.

In Sri Lanka, the Draft Bill provides the legal and regulatory framework to attract investments to develop the infrastructure of the Port City and also provide offshore products and services to the international business community. This legal framework is one of its kind and conceptually sound, as its scope and content can be expanded by the Economic Commission by way of Regulations, Rules, Orders and By-Laws. Hence, Sri Lanka has adopted the legislative technique of shorter Parliamentary Act and longer Executive Regulations in drafting complex legislation, as advocated by Justice Crabbe at CALC meeting in Ocho Rios, Jamaica (1986).

On reading the draft Bill, I find that there are few gaps and problems relating to legislative drafting. Hence, I wish to say something about legislative drafting before I undertake a constructive review of the draft Bill for the sake of our children and grandchildren.

 

LEGISLATIVE DRAFTING

 

Legislative Drafting is a form of communication very different to any other form of writing. It has no excess words and no repetitions. It must have clarity and simplicity, so that it could be understood clearly by stakeholders, statute users and investors.

Lord Thring, former First Parliamentary Counsel of the UK, said about 150 years ago that legislation must be drafted in the same way as razors are made to sell. Hence, legislation should be marketable, effective and efficient to achieve the objectives enumerated therein. On this basis, I will now proceed to suggest a few changes to make the draft Bill more attractive to investors and reduce ambiguities, lacunae and grey areas in the capacity of a Legislative Draftsman with 40 years standing in many Commonwealth countries.

 

REVIEW OF THE DRAFT BILL

(a) Long Title

The long title is too long. It must be clear and concise to capture the broad scope and content of the draft Bill. I humbly suggest the following long title.

AN ACT

to make the Colombo Port City a Special Economic Zone; to establish and empower the Economic Commission to promote, manage, regulate and attract investments to the Colombo Port City by establishing a single window; to attract corporate clients and high net-worth individuals to establish offshore banks, offshore companies, residential condominium units, hospitals and any other product or service; to provide investors with incentives and tax exemptions; to establish International and National Dispute Resolution Centre within the Zone; and for matters connected therewith or incidental thereto.

(b) Preamble

The preamble to the Draft Bill is not attractive and should illustrate Sri Lanka’s competitiveness by reference to her strategic position in the Indian Ocean. I humbly submit the following opening lines to the preamble.

WHEREAS

, Sri Lanka enjoys an enviable strategic advantage in the Indian Ocean as a gateway to West Asia, East Africa, Indian Sub-Continent and East Asia where the Chinese Belt and Road Initiative will impact on the Special Economic Zone along with the participation of other trading powers in this region and beyond …

(c)

Part II of the Draft Bill

Part II of the Draft Bill deals with objectives, powers, duties and functions of the Commission. It is an important part and should include a clause to ensure that the prime duty of the Commission is to prevent money laundering and inflow of terrorist financing.

Clause 5(b) should be deleted and be substituted by the following sub-clause, in order to avoid inconsistency with the Board of Investment Act –

(b) attract foreign direct investments to develop the infrastructure of the Port City with multiplier effect on the rest of the country.

It is useful to add immediately after paragraph (2) of clause 6, the following new paragraph (3), in order to allow local legal and accountancy firms in Sri Lanka to play a dynamic role as AGENTS in promoting investments in the Colombo Port City as in other Port Cities. The Offshore Directory provides a List of all agents operating in various jurisdictions. The draft Bill does not appear to provide an opportunity to our lawyers and accountants to play a dynamic role in promoting investments as agents and this should be expressly stated in paragraph(3)

(3) In the exercise, performance and discharge of its powers and duties and functions under sub-section (1), the Commission shall approve agents who may represent offshore companies, offshore banks and other investors at the Commission by being resident in Sri Lanka.

 

(d) Part III of the Draft Bill

Part III deals with the composition, administration and management of the affairs of the Commission. The Commission has exclusive responsibility in granting registration to offshore banks and companies. A question may arise whether the Commission could register an offshore bank, if the Monetary Board refuses to give a license or classifies the licence into class A, Class B and Class C Banks and impose certain conditions to protect investors as in other offshore financial centres.

The Commission needs to maintain a check-list of all black-listed investors with the assistance of other Special Economic Zones. Otherwise, criticisms will be mounted against the Commission.

The Commission needs to protect the reputation of the Colombo Port City. If something goes wrong, the Colombo Port City will not be a blessing but a curse. Hence, every endeavour should be made to prevent drug money or terrorist funds coming into the Colombo Port City in a devious manner. Such devious methods include numbered accounts and bearer shares. In this day and age, we cannot adopt the policy “Let the robber barons come”, as the international community will be watching us at every step as to how we handle our offshore business.

Lack of proper scrutiny of the investors may lead to a disaster. In Antigua and Barbuda, Robert Allen Stanford obtained a license to operate an offshore investment bank. He built several offices, condominiums and sponsored 20/20 Cricket Tournaments. Later on, he was convicted of a Ponzi scheme and was sentenced to imprisonment by an US Court for a period of 120 years. In 2015 when I visited Antigua, I was shocked to see that a part of the Financial Centre was like a Ghost City.

 

(e) Part V of the Draft Bill

Part V deals with the Director-General and the Staff of the Commission. There should be a provision in this Part to say that the Director-General and the Staff of the Commission shall be deemed to be public servants under the Bribery Act and the Penal Code.

 

(f) Part VII of the Draft Bill

Part VII deals with the registration of offshore companies. It is not something new to Sri Lanka. Offshore companies were introduced under the 1982 Companies Act, so that youth in Sri Lanka could be employed as seafarers in these offshore shipping companies. It was a dream of late Lalith Athulathmudali to register offshore shipping companies as in Panama and provide opportunities for our youth to be seafarers, marine engineers and pilots.

Offshore company registration under the Companies Act 1982 and the Companies Act 2007 failed for several reasons. The tax regime was not clearly laid down. The provisions relating to offshore companies were inadequate to deal with issues relating to offshore shipping. A provision should be included in this Part of the Draft Bill to make Regulations relating to offshore companies, especially offshore shipping companies, offshore trusts companies, offshore insurance companies, etc., if we were to develop this concept to its logical ends as a competitive destination in the offshore world.

The Economic Commission provides offshore companies with tax exemptions and fiscal incentives, case by case, and thereafter such exemptions and incentives will be submitted for Cabinet approval. Once approved, President will make an Order and it will be gazetted and be laid before Parliament. Hence, it is likely that mere brass plate offshore companies will not be able to operate in the Colombo Port City.

 

(g) Part VIII of the Draft Bill

Part VIII deals with offshore banking. The definition of “banking business” in the Draft Bill is too narrow, if we were to attract reputed banks to operate in the Colombo Port City. The definition should include Investment Banking and Islamic Banking. Regulations made under this Part are of paramount importance to avoid crisis situations. Regulations made under Clause 45 must deal with confidential relationships and bank secrecy. It is the hen that lays the golden egg, as secrecy is fundamental to attract offshore banking business.

On many occasions, law enforcement agencies of other countries may require documentation relating to bank accounts. Sometimes they will subpoena such bank officials when they enter their country. (See: USA vs Bank of Nova Scotia (1982). Hence, there should be a mechanism either in the Draft Bill or in the Regulations to deal with such requests by the Commission if there is a prima facie evidence against a particular bank or a personal account.

 

Constitutionality of the Draft Bill

 

The purpose of this article is not to deal with the constitutionality of the Draft Bill, as this matter is before the Supreme Court of Sri Lanka. The issues are likely to be very controversial but some claims relating to unconstitutionality are not justifiable and spurious. It is a different ball game as we are dealing with foreigners in regard to their offshore operations and therefore discrimination with nationals may not arise on reasonable differetia.

 

However, the failure on the part of government to provide the professional bodies an opportunity to review an important Draft Bill of this magnitude can be construed as a violation of the principles of participatory democratic process and the sovereignty of the people as enshrined in our Constitution. South African Constitutional Court in Doctors for Life vs Speaker (2006) invalidated an Act of Parliament as it failed to consult the professional bodies and the Court thereafter recommended to the Legislature to re-enact the same Act after consulting the relevant professional Bodies.

 

Concluding Remarks

Managing the Colombo Port City by the Economic Commission is an onerous task. The Draft Bill is only “the tip of the iceberg” and many regulations, rules, by-laws, etc,. need to be made to deal with offshore products and services, condominiums, time shares, stock-exchange and hospitals within its area of governance.

It is wrong, unfair and unpatriotic to say that this Draft Bill will convert the Port city into a Chinese colony.ri Lanka will welcome all countries from the East and West to establish international business companies, international banks, hospitals, condominiums, etc., in a strategic location, notwithstanding Rudyard Kipling’s saying “East is East, and West is West, and never the twain shall meet”.

Offshore business is competitive. The developed countries such as the UK and the USA have a “row” with the developing countries for initiating offshore financial centres, as they reduce their tax revenue from high net worth individuals and corporate entities. However, there is duplicity in this matter more severe than the “Geneva process”, as they encourage territories under their control to transfer money to the UK or the USA banks and stock exchanges and impose restrictions on those countries which do not transmit their deposits or invest in stock exchanges in the UK and the USA. Hence, we must be prepared to meet this challenge.

(The writer is a law graduate of the University of Ceylon and holds postgraduate qualifications from the University of Cambridge, UK. He served as UN Legal Expert, Legal Consultant and Legal Draftsman to many Asian, African and Caribbean Countries. He has drafted legislation relating to offshore products and services and handled legal issues on these matters in the Caribbean. Email: mendis_law@yahoo.com).

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900-year-old Buddhist monastery discovered in India’s Jharkhand state

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BY S VENKAT NARAYAN

Our Special Correspondent

NEW DELHI, April 18:

The Archaeological Survey of India (ASI) made a major discovery early this year. It found remains of a sprawling Buddhist monastery at least 900 years old, full of small and large statues of Buddhist deities in Bahoranpur village of Gurhet panchayat in Hazaribagh’s Sadar block in India’s Jharkhand state. There were also some Shaivite remains at the site.

The site, at the eastern side of Jharkhand’s Sitagraha hills, has been cordoned off by security personnel. Over the last several weeks, groups of people have been making their way to the site, about 12 kilometres outside Hazaribagh town, on foot or on bicycles.

Hazaribagh is 124km from Bodh Gaya in Bihar, where Gautama Buddha (567-487BC) had attained enlightenment at the age of 35 after 49 days of continuous meditation under the Bodhi Tree.

“Bhagwan ke darshan karne aaye hain,” (“I have come to see God”), said Prajapati, a skilled labourer trying to make his way to the site. He is hoping the excavation will continue for some time so he can perhaps find a job at the site.

Already, shops selling tea and sugarcane juice have come up at some distance from the site. Villagers claimed there are days when up to 5,000 people come to look at the statues.

Among the ASI’s discoveries are four statues of Taras, the “saviouresses” of the Thunderbolt Vehicle, displaying the Varada mudra, a hand gesture signifying the dispensing of boons. There are six statues of the Buddha in the Bhumisparsha mudra, with all five fingers of his right hand extended towards the earth, symbolising his enlightenment. Then there are remnants of a statue of the (Hindu) Shaivite goddess Maheswari, with a coiled crown and chakra, suggesting a degree of cultural assimilation at the site.

Assistant Archeologist Niraj Kumar Mishra of Excavator Branch III, Patna, said: “We had excavated this area in November 2019… Since January 31 this year, we focused on a mound near Juljul Pahar in the Sitagarhi hills, where we found remains of a Buddhist monastery-cum-shrine, with an open courtyard and rooms along the sides.”

Soon after the findings became widely known, two of the statues disappeared from the site. The thieves were arrested in Jharkhand capital Ranchi a week later, and the statues were recovered. But the incident underlined the neglect that the priceless archaeological site faced.

Mahesh Tigga, head of Gurhet panchayat, said: “Buddhist relics have been found at several places in this area. We have asked the government to build a museum here. We will not allow the statues to be taken away from our land.”

The first archaeological discoveries in this area were made three decades ago. In 1992, veteran environmentalist and tribal arts conservationist Bulu Imam, convener of the Hazaribagh chapter of the Indian National Trust for Art and Cultural Heritage (INTACH), stumbled upon pottery and remains of Buddhist relics and statues here.

Imam reported the discovery of painted grey ware (PGW) pottery, a votive stupa, a black basalt apsara torso, and an “eight-petalled astadala lotus” inscribed on stone.

“Remains of a vihara, stupa, and village with iron smelting siter alongside in a Sarna or sacred grove which yielded PGW fragments are confirmed. It seems that several tanks and wells and villages in the region were once part of comprehensive Vihara on the pilgrim route to Midnapore (Tamralipti),” Imam wrote (Damodar Valley Civilisation, 2001).

Imam estimated the antiquity of the Buddhist sites of Hazaribagh from 300 BC to the period of the Palas (8th to 12th centuries AD), and the Sena (11th-12th centuries). The monastery that has now been excavated lies on the old trade route from Varanasi to Tamralipti, via Sherghati in Gaya district in neighbouring Bihar state, and the Sitagraha hills in Jharkhand.

 

A lot of Hazaribagh district is forested, and is home to the Birhor tribals to whom Juljul Pahar is sacred. Every year, on Buddha Purnima day and other occasions of religious significance, local people go to the top of the hill with offerings of rice and milk. Besides the remains of the ancient vihara, the hill has a 65-foot stone face that the Birhors revere as Mahadeva (Lord Shiva, a Hindu deity).

Imam, who is now 79 and runs a museum that contains neolithic artefacts and collections of the local Khovar and Sohrai paintings, said he had been trying to get the Central Government to relocate a BSF (Border Security Force) firing range in the area from the early 1990s.

“However, till date, the firing range remains as it is… I informed ASI in 1992, but it took them close to 30 years to begin excavating this major Buddhist site… The ASI’s recent findings are the most significant archaeological discovery in Jharkhand in modern India. No other intact Buddha statue of this beauty and quality, around four feet tall and with heavy back support typical of the time of the Palas, has been found … Even in Bihar only a few statues of this quality have been found,” he said.

Imam’s discoveries were confirmed in the ASI’s report on ‘Exploration in districts Hazaribagh and Chatra, 1995’. The report, published in 2000, said: “Historical sites at Sitagarh yielded evidence of three circular brick structures besides one habitational mound, while Itkori yielded temple remains alongside a huge habitational area.

“At both these sites were noticed the sculptures of both Brahmanical and Buddhist pantheon. At Itkori a large number of sculptures, majority of which comprised votive stupas, were noticed. These sculptures belong to the Pala period, and only a few of these are inscribed.”

Imam believes the Chinese scholar Hiuen Tsang (Xuan Zang) may have visited Sitagraha during his travels in India in the seventh century. “His visitations were very complex, but at that time, he could have gone back to China through one of only two routes, from Mayurbhanj in Odisha and Tamralipti in Bengal,” he said.

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